Appeal No. 2005-1024 Page 11
Application No. 10/156,291
to make and use a molded soft intraocular lens having an aspheric portion as called for
in claim 26. In considering the effect of the appellants’ evidence, we begin with the
presumption that the prior art disclosures of the applied references are enabling; the
burden is on the appellants to rebut that presumption by a preponderance of the
evidence. In re Sasse, 629 F.2d 675, 681, 207 USPQ 107, 111 (CCPA 1980).
The Stickar declaration addresses intraocular lenses having an aspheric portion
and a spherical portion and thus is not commensurate in scope with claim 26, which
does not recite a lens having both an aspheric portion and a spherical portion. Nordan
addresses soft intraocular lenses formed of silicone and is likewise not commensurate
in scope with claim 26. The Blake declarations state that declarant was unable to find
any information in the literature which would permit him to manufacture a soft aspheric
intraocular lens, that the combined disclosures of Burk and Mazzocco were insuffiicient
to permit him to make an aspheric intraocular lens and that he is not aware of any
technology to produce a soft aspheric intraocular lens that existed at the time of the
filing of the appellants’ patent application. The Blake declarations, however, do not
indicate or explain why molding of a soft aspheric lens presents problems which are so
distinct from those of molding a soft spherical lens that one of ordinary skill in the art at
the time of the appellants’ invention would not have been able to resolve them without
undue experimentation. As such, the Blake declarations fail to persuade us that the
combined teachings of any of the applied primary references and Mazzocco would not
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